Cattlemen worried over EPA’s proposed water rule

The National Cattlemen's Beef Association fears the U.S. Environmental Protection Agency is trying to bypass Congress in establishing a rule redefining "waters of the United States" in the Clean Water Act. The NCBA believes the rule could eventually force farmers and ranchers to get permits for agricultural activities.

Capital Press

The nation’s largest cattlemen’s group is among critics who fear a proposed rule by the U.S. Environmental Protection Agency is merely an attempt to gain control of all water on private land.

The agency is seeking to expand the definition of “waters of the United States” in the Clean Water Act to include any water that feeds the navigable rivers and streams that now fall under federal jurisdiction.

The draft rule, which is being reviewed by the federal Office of Management and Budget, relies on data from a scientific report titled “Connectivity of Streams and Wetlands to Downstream Waters”, for which the EPA’s Science Advisory Board has been soliciting public comment.

The National Cattlemen’s Beef Association is concerned the rule could eventually force farmers and ranchers “to get permits to do anything on their ranches and farms,” said Tamara Thies, a spokeswoman on environmental issues.

“The fact is, of course, that there are literally hundreds of millions of wet areas on land across the United States, and the EPA claims that it doesn’t matter what kind of wet area we’re talking about,” Thies said. “It doesn’t matter what kind of wet area you’re talking about — if it’s just wet during a rainstorm — it still affects every other water because all water runs downhill.

“So if you’ve got a wet area today … they claim it eventually gets to a truly navigable water, so all waters regardless of value should be regulated,” she said.

The EPA counters that the rule is limited to clarifying uncertainties over Clean Water Act jurisdiction that have arisen from recent U.S. Supreme Court decisions and doesn’t propose changes to existing regulatory exemptions, including those for agriculture, spokeswoman Stacy Kika said.

Specifically, the EPA and the Army Corps of Engineers want to enhance the ability of the U.S. Department of Agriculture’s conservation programs to improve water quality “by encouraging expanded participation in conservation programs by farmers and ranchers,” Kika told the Capital Press in an email.

In 2006, the Supreme Court ruled that waters of the United States in the Clean Water Act cover “relatively permanent, standing or continuously flowing bodies of water” or wetlands connected to traditional navigable waters, Thies noted. In a concurring opinion, however, Justice Anthony Kennedy suggested federal jurisdiction should include wetlands that “possess a significant nexus to waters that are or were navigable.”

The proposed rule includes exclusions for such agricultural features as irrigation ditches, stock ponds, artificially irrigated fields and areas artificially flooded for rice growing.

The rule comes after a bill in 2009 to change the definition of “navigable” waters in the Clean Water Act languished in Congress amid opposition from the NCBA and other farm groups. Thies said she believes the rule is an attempt to bypass Congress’ authority.

“That is one of this administration’s favorite methods to try and accomplish its goals,” she said. “Congress debates things and rejects them, and the EPA tries to do them anyway. This is a perfect example of the EPA just taking authority away from Congress and doing it regardless of congressional intent.”